Summary: There was no fault in the way the Council assessed whether the noise that Mr B and Mr C complained about was a statutory nuisance. There was fault in its delay in carrying out an inspection of the licensed premises and in failing to check whether the agreed noise levels were adhered to. There was no fault in the Council’s actions in ensuring that the new conditions of the licence were adhered to. The Council has already remedied the fault by apologising and service improvements.

The complaint

1. Mr B and Mr C say there is a chronic problem with noise from a bar which is on the ground and basement floor below Mr B’s apartment.
2. They complain that the Council:
• Failed to properly investigate or take appropriate action regarding the noise complaints they raised.
• Provided Mr C with the wrong licence document for his application for the licence review and this caused stress and delay.
• Failed to ensure that the licence holder complied with the additional licence conditions.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have discussed the complaint with Mr B and Mr C. I have considered the documents that they and the Council have sent, the relevant law, policy and guidance and both sides’ comments on the draft decision.

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What I found

Law and guidance

Statutory nuisance

6. Councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a statutory nuisance, covered by the Environmental Protection Act 1990. The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs or noise from industrial, trade or business premises.
7. For a noise to count as a statutory nuisance, it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises;
• Injure health or be likely to injure health.
8. The statutory nuisance must be witnessed by an Environmental Health Officer, who will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has actually occurred.
9. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
10. The abatement notice can be delayed for up to 7 days while the council tries to get the person responsible to stop or restrict the noise.
11. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
12. Councils can also decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may meet with or write to the person causing the nuisance or suggest mediation.

Noise Act 1996

13. The Noise Act gives councils additional powers to address night time noise (between 11pm and 7am). The council may investigate a complaint and may as a result issue a warning notice if the local authority is satisfied that the noise (measured from the complainant’s dwelling) exceeds the permitted levels which are set by the Act.

What happened

14. Mr B lives in an apartment block and his apartment is directly above a bar which is owned by Mr D. The Council granted the bar a premises licence in April 2013. The bar used to be on the ground floor only, but in 2018 Mr D opened the basement floor as a bar. Mr B and Mr C say the noise increased as a result.
15. Mr B complained to the Council about the noise from the bar on 14 January 2018. The environmental health officer visited Mr B’s apartment to assess the noise. The officer concluded the noise was not a statutory nuisance. The Council wrote to Mr D on the same day to let him know there had been a noise complaint.
16. The Council emailed Mr B and Mr C on 2 February 2018 and said that the best way to deal with the issue was for them to contact the Council when there was a noise so the Council’s environmental health officer could attend the property and then witness the noise nuisance.
17. Mr B rang the Council on 3 February 2018 during the afternoon and the officer attended his flat. The officer said the noise did not constitute a nuisance but agreed to speak to Mr D. The Council officer spoke to Mr D who agreed to turn the music down as they said they wanted to work with the Council.
18. Mr B made a further noise complaint during the evening of 3 February 2018 and the officers attended Mr B’s flat. They heard noise but said it did not reach the level of a statutory nuisance.
19. The Council officers visited the bar twice on 7 February 2018. The Council offered to visit Mr B’s flat in the evening to assess the noise now that the basement bar was open. Mr B said he was staying in a hotel because of the noise but the Council could visit his neighbour’s flat which was also partly situated on top of the bar. The Council officer visited the neighbour’s flat and did not witness a nuisance.
20. Mr B and Mr C continued to send emails to the Council to complain about the noise.
21. The Council officers visited Mr B’s apartment on 20 February 2018 and could not hear any noise. The officers stressed the importance of ringing the Council when the noise could be heard. They said they would get Mr D to visit Mr B’s property so the music could be set at a level agreed by both.
22. Mr B emailed the Council on 22 February 2018 and said he had started to notice an engine like noise from the premises and that sometimes the premises were being vacuum cleaned in the middle of the night.
23. Mr B called the Council on 11 March 2018 at 18.38 to report noise. The Council officer attended and heard music but said it was not a statutory nuisance.
24. Mr B emailed the Council on 11 March 2018 and said he had rung the Council at 23:00 to report noise but was told there were no officers available to attend. The Council rang Mr B at 23.35 pm and said an officer could attend but Mr B said he was going out because the music was too loud.
25. Mr C applied for a review of the bar’s licence on 13 March 2018. In the meantime, the Council tried to organise a meeting between Mr B, Mr D and the Council officer to set the music at an appropriate level agreed between the two sides.
26. The Council officer attended Mr B’s property on 17 March 2018. He could hear the bass of the music. He put his ear to the metal column in the hallway and noted that the music was louder. The officer could also hear chairs being scraped along the floor in the bar. He said the noise was not a statutory nuisance.
27. The Council officers attended Mr B’s property on 24 March 2018. Initially they could hear no music, but then a very low-level bass could be heard sporadically in the bedroom. Two officers went to the bar and one officer remained in Mr B’s property. Mr D and Mr B agreed the music levels and Mr D agreed to adhere to these levels.
28. Mr B said the bar was being cleaned after 3 am causing more noise. Mr C emailed the Council on 25 March 2018 and said the bar was advertised as being open until 3 am, in breach of the licence which said the closing time should be 2 am
29. Mr B’s neighbour whose flat is also partly above the bar said she had not experienced any noise issues since the Council’s visit. Mr C says that this may be because she does not stay in her flat so frequently and her flat is smaller so may be less affected by the noise.
30. The Council wrote to Mr D and said an acoustic assessment would be of benefit and informed him of the complaint about the night cleaning.
31. Council officers attended the bar three nights in a row from 31 March 2018 always around 02.30 am. The bar was closed each time. They attended on 7 April 2018 at 2 am and the bar was closed.
32. Mr B rang to complain about the noise on 6 April 2018. The Council officer offered to come over to assess the noise but Mr B declined this. Mr B says he made this decision because he had lost all trust and confidence in the officers at that stage. He said the officers had failed to clarify what their understanding of a statutory nuisance was and continually applied the wrong test. He felt further visits were a waste of time as the assessment process was fundamentally flawed.
33. The Council officer went out to the bar anyway and visited the outside area. There was no noise breakout at street level.
34. Mr C emailed the Council on 11 April 2018 as he realised it had sent him the wrong version of the premises licence which he had based his application on. Mr B and Mr C withdrew their application for a licence review on 24 April 2018.
35. The Council officers continued to visit the premises in May 2018 on many days and the bar was always closed after 1 am and often well before that time.
36. The review of the licence took place on 28 June 2018. Mr B and Mr C sought a revocation of the licence partly on the basis that there was a breach of the planning permission for the bar. In the end the parties agreed that the bar could remain open and the Council imposed additional conditions which were:
• Mr D should appoint an independent acoustic engineer within 28 days.
• The engineer would complete a report within three months.
• Mr D should abide by the reasonable conclusions of the engineer.
• Mr D would pay for the costs of the engineer’s report and the reasonable recommendations.
• There should be no noise from the premises nor vibration be transmitted through the structure of the premises which gave rise to noise leakage as identified in the report.
• DJs could continue to play music at the bar until the above conditions were complied with, but a tamper proof noise limiter had to be installed within 28 days.
37. The Council officer visited the bar on 13 July 2018 and said the sound levels were not excessive at all. Mr B called the Council on 20 July 2018 and said the noise was excessive. The Council officers attended the bar.
38. The noise limiter was installed on 21 July 2018. Mr B, Mr C, Mr D and the Council officer were present. After two hours, sound levels were agreed.
39. The acoustic expert carried out two visits in September and completed his report on 28 September 2018. The report took readings of noise, at different levels and frequencies. It took readings from the ground floor and the basement of the bar and from Mr B’s bedroom and his open plan living room. The readings were both of noise overall and noise from the music from the bar. It compared the noise with the building regulations requirements and the Council’s own detailed noise policy which it uses to assess noise in planning applications.
40. The expert said the sound insulation met and exceeded the national building regulations requirements.
41. In terms of the planning requirements, the expert said there were no concerns in the bedroom as the readings were in line with the planning policy. However, there were two readings in the living room which were over the minimum the Council would expect in its planning policy.
42. The expert noted that the dominant sound transmission path was a section of the floor toward the right-hand corner of Mr B’s living room. He therefore recommended that this dominant transmission path should be inspected as he was not able to do so during his visit. He said any gaps, holes or abnormalities should be forwarded for review. If a weakness was found in this corner, then remedial works would need to be done to improve the sound insulation so that it would be similar to the rest of the flat.
43. The expert said that, once the remedial works were done, he should re-visit the apartment to re-test the sound insulation performance and also to re-establish the music levels.
44. Mr B continued to complain about noise, but often did so after the event which meant council officers were not able to witness the noise.
45. Council officers attended Mr B’s property on 12 October 2018. They could hear faint music in the front corner of the living room but not in the bedroom. They did not witness a statutory nuisance.
46. The officers inspected the front corner in Mr B’s living room identified in the acoustic report as the possible cause of the noise leakage and took photos of the area. Mr B took the officers downstairs to the back of the basement but they could still not hear anything.
47. The officers emailed the photos to the acoustic expert.
48. The Council officer spoke to the acoustic expert about proposed remedial works. He emailed Mr B with the outcome of that discussion on 8 November 2018. He said the acoustic expert had confirmed that the edgings were a weak point and it they were to be cleared of the loose debris and filled, this would reduce the noise leakage that Mr B experienced.
49. Mr B requested further clarification about the proposed works. He said there was a previous suggestion to fill the void above the ceiling of the bar with insulation foam and he wanted Mr D to do these works instead.
50. I asked the Council for some further information about the acoustic expert’s involvement in the decision making for the remedial works.
51. The Council has sent me an email from the acoustic expert. He said:
• He identified in his report that the dominant transmission path between the ground floor and the first floor lounge was a section of the separating floor towards the right hand corner of Mr B’s lounge.
• He had recommended in his report that this area should be inspected with photos of any abnormalities, gaps and holes to be forwarded for review.
• The officers inspected the top of the separating floor rather than inspecting the underside as this was plasterboarded.
• He had seen the photos and the visible gaps shown in the photos had the potential to be a flanking path.
• He recommended that loose material in the gaps should be removed and the gaps should be filled with mortar/concrete.
• A re-test may be undertaken of the sound insulation between the ground floor and the first floor lounge to assess any improvement.
• If there was still a noise transmission problem after the works, then an inspection hole would need to be made in the plasterboard ceiling below and photos taken in the ceiling void.

The complaint

52. Mr C complained on 20 June 2018 and his complaint went through the Council’s two-stage complaints procedure. I have summarised the complaint and the responses which are relevant to the investigation.
53. Mr C said:
• The Council had not properly investigated the statutory nuisance complaint. He and Mr B had provided evidence that there was a noise nuisance, but this was ignored. He said the Council should have installed noise recording equipment.
• The Council had not enforced the existing licence conditions (at the time of the first complaint) and the additional licence conditions imposed at the review.
• The Council gave him the wrong version of the licence. This caused him a lot of inconvenience and additional work and meant he had to withdraw and resubmit the application.
54. The Council said:
• It could not take actions against a licence holder without evidence and it would always try to work with the licence holder to resolve the issue before taking formal action.
• A premises licensing inspection should have taken place at an earlier stage in the investigation process.
• There was delay in responding to his emails.
• It said enforcement officers carried out many visits, during the day and the night to Mr B’s apartment, but they never witnessed a statutory nuisance. The officers worked with Mr B and Mr D to agree what level the music could be played at. Mr D agreed to keep the music at that level.
• It said that on occasion where the officers could not go into Mr B’s apartment, they checked the noise from the street. It agreed the officers did not check whether the noise in the bar was at the agreed level and this should have happened.
• It had made a mistake in sending out the incorrect licence and said it had already apologised for this. The Council offered to explain the error to the Licensing Sub-Committee, gave Mr C the chance to prepare additional submissions and offered to defer the hearing. Therefore, it said Mr B and Mr C would not have been at any disadvantage to proceed with the first review hearing and there was no need to withdraw the application.
• Mr D had adhered to the conditions imposed at the licence review. The only outstanding issue was the remedial works but Mr D was waiting for Mr B’s consent to carry out the works.
55. I raised the issue of the noise recording equipment with the Council. The Council said noise recording may work in cases where there was loud noise for a short time as it could sometimes be difficult for officers to attend quickly enough to witness the noise. The Council said it would not be appropriate in this case as the noise was at a very low level but went on for a long time. The issue was not that the officers had not witnessed the noise, but rather that the noise did not meet the threshold of statutory nuisance.
56. Mr C added to his complaint when he made his complaint to the Ombudsman. He said the Council should have used the Noise Act to address the noise nuisance. The Act set objective levels for night time noise and was therefore more appropriate for the type of problem Mr B experienced.
57. Although this was not something that Mr C raised in his complaint to the Council, I asked the Council the question.
58. The Council said it did not need to use the powers under the Noise Act to address Mr B’s noise complaint. It said the levels of noise were too low to require any enforcement action under the Noise Act. The acoustic expert tested what the noise was in Mr C’s flat when the music was played at different levels. The noise did not exceed the level set in the Noise Act. The Environmental Protection Act gave the Council more flexibility in terms of enforcement as it did not set minimum noise levels. The problem was that the noise was too low to reach the level requiring enforcement action.

Analysis

Noise nuisance

59. Officers have undertaken a range of steps to investigate the noise concerns.
60. They have responded to Mr B’s calls by visiting on numerous occasions. I counted 11 visits to Mr B’s apartment and 38 visits to the premises over a period of 10 months. Officers have never witnessed a noise that is a statutory nuisance.
61. I note the Council has taken other proactive steps to try to address the noise issue. It has:
• Written to the bar owner on several occasions even though no statutory nuisance was observed.
• Organised a meeting between Mr B and Mr D to set lower levels of music. Mr D agreed to set the music levels at a lower level on a voluntary basis.
• Spoke to another resident in a similar position to Mr B to find out whether they had any noise problems and went to their apartment to listen to the noise.
62. The Council has taken correct actions to investigate Mr B’s noise complaint. It was for officers to judge whether the noise constituted a statutory nuisance, having regard among other things, to the length, timing, location and the view of the average person.
63. I agree there was fault as the Council did not also check that the agreed levels of music were adhered to. I cannot say whether Mr B and Mr C suffered an injustice as it is impossible to say what the music levels were, but they were not of a level to be a statutory nuisance as that had been checked by the officers.
64. The use of noise recording equipment is not mandatory and I accept the Council’s reasons why it has not used the equipment in this case. I also note that a full acoustic assessment has taken place and noise limiters are now installed. It is unlikely that noise recording equipment would add anything further to the information and the remedy that this achieved. The acoustic expert has compared the noise levels with the standards set in the building regulations and the planning policy and has set out a plan to remedy the noise leakage.
65. I have considered the Noise Act. The Noise Act does not impose any additional duties on the Council so any action it takes under the Act is discretionary. As the noise levels were low and the Council assessed the noise as not being a statutory nuisance, I accept the Council’s position that further action under the Noise Act was not necessary, but was also unlikely to be successful, particularly as Mr D was cooperating with the further conditions imposed at the licence review hearing.

Communication regarding licence

66. The Council has admitted there was fault as there was a delay in its communications with Mr C and in its Council’s failure to send Mr C the correct licence. The Council argues that there was no need for Mr C to withdraw his application and submit a new application and therefore he suffered little injustice by the error.
67. Only Mr C could decide whether he needed to submit another application or not. He did not feel reassured by the Council’s assurances that it would not make a difference. But in any event, even if he had continued with the original hearing, Mr C still had to re-draft his submissions. Therefore, I accept that he suffered an injustice because of the Council’s error in providing him with the wrong licence documents.

Compliance with conditions

68. The Council says it would have been good practice to carry out an earlier inspection of the premises and I agree. I cannot say, of course, what the outcome of an inspection would have been so it is difficult to say what, if any injustice Mr and Mr C suffered as a result. Mr B and Mr C then made their own application which led to the review of the conditions.
69. Mr B and Mr C say the Council is at fault for not taking any action against Mr D for not complying with the licence conditions. The licence conditions said Mr D had to:
• Install a noise limiter within 28 days, which was 26 July 2018. Mr D installed the noise limiter on 21 July 2018.
• Produce a report by an independent acoustic engineer within three months, which was 28 September 2018. The report was produced on 28 September 2018.
• Abide by the reasonable conclusions of the acoustic expert.
70. The Council says Mr D has complied with the licence conditions and it is therefore not considering any enforcement action against him. It says he has met the first two conditions and he has offered to carry out the remedial works in the corner of Mr B’s living room but is waiting for Mr B’s agreement to start the works.
71. Mr B is not convinced that the proposed works in the corner in his living space will be sufficient to address the noise leakage. He thinks that Mr D prefers this route as it is cheaper and easier.
72. It is not for the Ombudsman to say, of course, what acoustic works Mr D should carry out. Only the acoustic expert can decide this.
73. The expert has identified the works as appropriate and therefore I do not find fault in the Council’s decision not to take further action against Mr D for making a proposal in line with the expert’s suggestions.
74. I note that the licence condition says that, once the remedial works are completed, the expert will carry out the noise tests again to check that the noise leakage problem identified in the living space has been addressed. Therefore, if the works are not sufficient to address the noise problem, as Mr B and Mr C say, then this will be discovered during the further testing. There will then need to be a further assessment to decide what further works are needed.

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Agreed action

75. The Council has apologised for the fault to Mr B and Mr C. It has addressed the issues with the officers to ensure it does not happen again. That is, in my view, an appropriate remedy. Mr B and Mr C’s main complaint relates to the noise and this has been addressed by the licence condition and the continued input from the acoustic expert.

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Final decision

76. I have completed my investigation. The Council has already remedied the fault.

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Investigator's decision on behalf of the Ombudsman